Scarinci Hollenbeck, LLC
The Firm
201-896-4100 info@sh-law.comFirm Insights
Author: Scarinci Hollenbeck, LLC
Date: March 15, 2017
The Firm
201-896-4100 info@sh-law.comMany people faced with intellectual property laws wonder whether they should copyright or trademark their creations. These two aspects of intellectual property law are both vital to business operations but are very different in how they are applied and defended, and in what aspects of your business they protect. Explore the difference between copyright and trademark, what protections each offers, and how an intellectual property attorney can protect your rights.
Copyright law protects original works of authorship. This includes novels to newspaper articles, to television programs and movies, to written staff music or audio recordings, to paintings, drawings and sculptures. In general, if it is an artistic work of physical creativity, but not a process or machine, it is protected by copyright law.
When you own a copyright, you have six exclusive rights, such as the right to reproduce the work, the right to prepare derivative works and the right to publicly perform or display the work, to name a few.
Copyright law is technically automatic. The moment you fix an original work of authorship in a tangible medium, such as writing it on a piece of paper, it is protected by copyright. While not necessary, copyrights can be registered with the US Copyright Office. This registration affords certain advantages, such as presumptions of validity, date of creation and ownership should you need to assert or defend your rights against a third party.
Trademark law, in contrast, protects those elements of your business that act as a source identifier. This includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others and to indicate the source of the goods/services. This could be a phrase that serves as your business’ slogan. It could be your business logo. It could be your business jingle – like the NBC chime. It could even be your trade dress, such as product design, packaging or color, or a combination thereof.
The purpose of trademark law is to prevent consumer confusion in the marketplace by preventing competitors from using confusingly similar marks in conjunction with the sale of their products or offering of services. Like copyright, trademarks are obtained through use of the mark and do not require registration. However, trademark registration provides significant advantages and is strongly recommended.
Unregistered trademarks are shown by using a ™ symbol along with the mark. Registered trademarks use an ® symbol. Using the wrong symbol can create problems when asserting or defending your mark in court.
A major distinction between copyright and trademark is in maintenance and protection. To maintain your rights in a trademark, you must diligently police unauthorized third-party uses of the mark. Since the purpose of trademark law is to protect against consumer confusion, a trademark holder can lose its rights in a trademark if it fails to police third-party use and consumers no longer view the mark as a source identifier. On the other hand, there is no such policing requirement for copyrights.
Sometimes, certain elements may be protected by both copyright and trademark. Consider, for example, the Lord of the Rings works by J.R.R. Tolkien. These works are currently still under copyright protection. In addition, the title and certain elements within the works are also protected under trademark law, since they have been used on goods or services as a source identifier. You would be hard-pressed to create an original story, for example, using the characters of Frodo and Aragorn and set in Middle Earth as they appear within the work since such elements are protected by both copyright and trademark law.
There are certain legal protections and defenses that allow limited use of copyright and trademarked works by the public. These include fair use, which allows for the reference to copyrighted works or trademark, and small snippets for educational, research, review or “transformative” purposes, such as parody.
If you need help with intellectual property law, your best bet is to seek the services of an intellectual property attorney like those available at Scarinci Hollenbeck. We have many years of experience in helping people just like you square away their intellectual property rights. So if you have any questions or if you would like to discuss the matter further, please contact me, Shane Birnbaum, at 201-806-3364.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
If you’re considering closing your business, it’s crucial to understand that simply shutting your doors does not end your legal obligations. Unless you formally dissolve your business, it continues to exist in the eyes of the law—leaving you exposed to ongoing liabilities such as taxes, compliance violations, and potential lawsuits. Dissolving a business can seem […]
Author: Christopher D. Warren
Contrary to what many people think, corporate restructuring isn’t all doom and gloom. Revamping a company’s organizational structure, corporate hierarchy, or operations procedures can help keep your business competitive. This is particularly true during challenging times. Corporate restructuring plays a critical role in modern business strategy. It helps companies adapt quickly to market changes. Following […]
Author: Dan Brecher
Cryptocurrency intimidates most people. The reason is straightforward. People fear what they do not understand. When confusion sets in, the common reaction is either to ignore the subject entirely or to mistrust it. For years, that is exactly how most of the public and even many in law enforcement treated cryptocurrency. However, such apprehension changed […]
Author: Bryce S. Robins
Using chattel paper to obtain a security interest in personal property is a powerful tool. It can ensure lenders have a legal claim on collateral ranging from inventory to intellectual property. To reduce risk and protect your legal rights, businesses and lenders should understand the legal framework. This framework governs the creation, sale, and enforcement […]
Author: Dan Brecher
For years, digital assets operated in a legal gray area, a frontier where innovation outpaced the reach of regulators and law enforcement. In this early “Wild West” phase of finance, crypto startups thrived under minimal oversight. That era, however, is coming to an end. The importance of crypto compliance has become paramount as cryptocurrency has […]
Author: Bryce S. Robins
Earlier this month, the U.S. Supreme Court issued a decision in Ames v. Ohio Department of Youth Services vitiating the so-called “background circumstances” test required by half of federal circuit courts.1 The background circumstances test required majority group plaintiffs pleading discrimination under Title VII of the Civil Rights Act to meet a heightened pleading standard […]
Author: Matthew F. Mimnaugh
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!